My friend Harris calls me a rules kitten. And it’s true. I like know what rules are and how they are made. There are lots of laws and even more administrative rules. How fitting that I’m chair-elect of the Oregon State Bar Administrative Law Section! http://osbadmin.homestead.com/
Last week we discussed what OLCC is and how it operates. Let’s see how OLCC creates its administrative rules.
OLCC promulgates its rules pursuant to the Oregon Administrative Procedures Act, ORS chapter 183. Such valid rules have the same effect as laws enacted by the legislature. Meltebeke v. Bureau of Labor & Indus., 322 Or. 132, 157, 903 P.2d 351 (1995). ORS 183.332 directs agencies to consider and conform to certain conditions while adopting policies and rules. This includes both “local conditions” and federal laws and rules. That’ll be important for us to consider in a little while, particularly about recreational marijuana, which is now legal under Oregon law but illegal under federal law.
ORS 183.332 continues,
[I]t is also the policy of this state that agencies attempt to adopt rules that correspond with equivalent federal laws and rules unless:
(1) There is specific statutory direction to the agency that authorizes the adoption of the rule;
(2) A federal waiver has been granted that authorizes the adoption of the rule;
(3) Local or special conditions exist in this state that warrant a different rule;
(4) The state rule has the effect of clarifying the federal rules, standards, procedures or requirements;
(5) The state rule achieves the goals of the federal and state law with the least impact on public and private resources; or
(6) There is no corresponding federal regulation.
ORS 183.335 requires agencies to give notice prior to adopting, amending, or repealing any agencies. Such notice should include the caption which would reasonably identify the subject matter of the action and the purpose of the action. An agency can adopt a temporary rule, which would be effective for no longer than 180 days. The OLCC has not, as of writing of this blog, given notice of any rules under Measure 91.
The OLCC’s rulemaking procedures are found at OAR 845 division 1:
Notice of Rulemaking
Prior to adoption, amendment or repeal of any permanent rule, the Commission shall give notice of the intended action:
(1) In the Secretary of State’s bulletin referred to in ORS 183.360 at least 21 days prior to the effective date. If a hearing is scheduled after the original notice, the subsequent notice must appear in the bulletin at least 14 days before the date of the hearing;
(2) By mailing or e-mailing a copy of the notice to persons on the mailing list established pursuant to ORS 183.335 (8) at least 28 days prior to the effective date. If a hearing is scheduled after the original notice, the subsequent notice must be mailed or e-mailed at least 21 days before the date of the hearing;
(3) By mailing or e-mailing a copy of the notice to the legislators specified in ORS 183.335(15) at least 49 days before the effective date of the rule; and
(4) By mailing, e-mailing, or furnishing a copy of the notice to:
(a) The Associated Press; and
(b) Associations or organizations having an interest in the rule matter.
Now that we know the process, we will examine, at the end of the week, the things that the OLCC must promulgate rules on; later on we’ll discuss what the commission will likely regulate, based on my review of commission meetings, discussions with OLCC staff, and general common sense.